Serious Harm Threshold in Defamation

Serious Harm Threshold

In 2021, the Defamation Act 2005 (Qld) (‘Defamation Act’) was amended to introduce (among other things) the serious harm element, the requirement for a plaintiff to meet the serious harm threshold and removed the defence of triviality.

This amendment has shifted the burden of proof from a defendant to the plaintiff to sufficiently establish that they have suffered serious harm and their claim is otherwise not trivial.

Section 10A of the Defamation Act establishes that it is an element (serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or likely to cause, serious harm to the reputation of the person.

A person or an excluded corporation intending to commence defamation proceedings must satisfy the serious harm threshold and demonstrate that the defamatory publication has caused them serious harm. For an excluded corporation, they must demonstrate that the defamatory publication has caused, or is likely to cause, the corporation serious financial loss.  If the serious harm threshold is not met, then the proceedings will be dismissed.

The introduction of the serious harm threshold is an attempt to reflect a balance between a person’s individual right to freedom of expression and the equally important right to protect one’s reputation.

Recent case law has provided further guidance on the serious harm element, what constitutes serious harm sufficient to satisfy the threshold and emphasises the consequences if the threshold is not met.

Serious Harm Element

Section 10A of the Defamation Act stipulates:

(1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.

(2) For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

(3) The judicial officer (and not the jury) in defamation proceedings is to determine whether the serious harm element is established.

(4) Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer’s own motion)—

(a) determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and

(b) make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established).

(5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).

(6) The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following—

(a) the cost implications for the parties;

(b) the resources available to the court at the time; (c) the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings.

(7) Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.

(8) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences).

The Amending Defamation Legislation

The Defamation Act was amended by the Defamation (Model Provisions) and Other Legislation Amendment Act 2021.

The defence of triviality was repealed, and a new clause 10A was included, essentially shifting the burden of proof from the defendant to the plaintiff.

The Explanatory Notes for the Bill say:

Clause 6 inserts a new section 10A (Serious harm element of cause of action for defamation) into the Act which provides that serious harm is an element of the cause of action for defamation, consistent with the approach taken in the Defamation Act 2013 (UK). Under this section, the plaintiff will be required to prove the publication of the defamatory matter has caused, or is likely to cause, serious harm to the reputation of the plaintiff. Subsection (2) provides that, for an excluded corporation, harm is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

Section 10A outlines a method for assessing the presence of the serious harm requirement, including the following points:

• The decision on whether this requirement is met is to be made by a judicial officer rather than a jury if one is present.
• The determination of this element can take place either before the trial starts or during the defamation trial itself, at the discretion of the judicial officer or upon request by a party involved.
• Should a party request that the serious harm requirement be assessed before the trial begins, the judicial officer must address this issue promptly before the start of the trial, unless there are exceptional reasons to defer this assessment to a later point in the proceedings, including during the trial itself.

The introduction of this new section aims to facilitate the swift resolution of defamation cases by addressing the serious harm issue early on as a preliminary matter.

Consequently, the defence based on the triviality of the harm, which previously obligated the defendant to demonstrate that the defamation was of minor significance, was eliminated from the Act.

Lachaux v Independent Print Ltd [2019] UKSC 27

The origin of the “serious harm” criterion in Section 10A traces back to Section 1 of the Defamation Act 2013 (UK), which specifies:

A statement does not qualify as defamatory unless its publication has resulted in, or is poised to result in, significant damage to the claimant’s reputation. For the purposes of this clause, damage to the reputation of a profit-seeking entity does not constitute ‘serious harm’ unless it has led to, or is likely to lead to, substantial financial loss for the entity.

The concept of “serious harm” remains undefined within both the UK and Australian legislative frameworks.  The UK Supreme Court’s deliberation in the case of Lachaux v Independent Print Ltd [2019] UKSC 27 provided a thorough and influential examination of the UK’s serious harm requirement, despite its non-binding nature in Australia.

The Court established that for a publication to meet the serious harm threshold, it must not only be defamatory in nature but must also have caused significant actual harm. This necessitates an examination of the real-world effects on the claimant’s reputation, beyond merely analysing the defamatory content’s potential implications.

Furthermore, the Supreme Court clarified that:

1. The burden of proof lies with the claimant to demonstrate that the publication in question has indeed caused serious harm.
2. Merely having a defamatory tendency is insufficient; the publication must have caused or be likely to cause harm that is genuinely serious.
3. For profit-seeking entities, the required harm under this section pertains to financial loss rather than reputational damage, and this loss must surpass a seriousness threshold.
4. Section 1 effectively eliminates the traditional legal presumption of damage, necessitating concrete evidence of the publication’s actual detrimental impact on reputation.

It’s important to note that serious harm pertains strictly to reputational damage (a false paedophilia accusation, for example), not emotional distress. Emotional distress does not serve as proof of reputational harm, which relies on both the inherent nature of the defamatory statements and their actual effect on the audience.

The determination of whether a publication causes serious harm is influenced by the response of others, including those unfamiliar with the claimant, but excludes the claimant’s personal assessment of the reputational damage.

The phrase “has caused” serious harm demands evidence of harm that has already occurred, whereas “is likely to cause” necessitates proof of potential future harm.

Thornton v Telegraph Media Group Ltd [2009] EWHC 2863 (QB)

The serious harm requirement outlined in section 10A seems to adopt the common law’s standard of significance necessary to establish a defamatory case.

In the case of Thornton v Telegraph Media Group Ltd, Justice Tugendhat acknowledged that regardless of the specific definition of defamation chosen (among the various criteria developed over time), it must encompass a level of seriousness to weed out insignificant complaints.  Tugendhat J said at [89]:

I accept Mr Price’s submission that whatever definition of “defamatory” is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims. I accept this submission for two reasons:

i) It is in accordance with the true interpretation of Lord Atkin’s speech in Sim. It is also in accordance with the decision of Sharp J in Ecclestone with which I respectfully agree;

ii) It is required by the development of the law recognised in Jameel (Youssef) v Dow Jones as arising from the passing of the Human Rights Act 1998: regard for Art 10 and the principle of proportionality both require it.

(this concept is known as ‘the Thornton principle‘).

According to the Thornton principle, the common law recognises a statement as defamatory if it significantly alters others’ perception of the claimant negatively or has the potential to do so.

This principle does not necessitate the consideration of external factors related to the publication or whether the publication has indeed damaged the claimant’s reputation. The seriousness threshold in common law is embedded within the very definition of defamation, relying on the publication’s content and the interpretation it receives.

Rader v Haines [2021] NSWDC 610

In the case of Rader v Haines, the plaintiff (Rader) commenced proceedings against his parents-in-law (Haines) and a company of which his father-in-law was the director.

The complaint related to an email that Haines had sent to Rader’s parents in England regarding their concerns about the education of their mutual grandchild, canvassing the ongoing acrimony between Rader and his ex-wife (daughter of Haines) including a recent disagreement regarding the payment of school fees.

The email caused Rader’s parents to shun or avoid him for a lengthy period of time.

One of the main issues considered by the Court is whether the email to Rader’s parents would constitute serious harm to Rader’s reputation. At [115] – [125] the Court considered this issue at length, taking into consideration the position established by the UK Courts:

[115] Prior to the enactment of the UK Act, courts in England and Wales developed two doctrines directed towards dealing with trivial or marginal defamation claims:

* Abuse of process: Jameel v Dow Jones [2005] EWCA Civ 75 (“Jameel”). This is not limited to defamation and has been applied to other causes of action (Briggs v Jordan [2013] EWHC 3217 (QB).

* The incorporation of a “threshold of seriousness” originating from the principles of defamation law themselves, requiring that the statement should tend to cause substantial harm to the plaintiff’s reputation: Thornton v Telegraph Media Group [2011] 1 WLR 1985; [2010] EWHC 1414 (QB) at [95] – [96].

Gibson DCJ concluded:

[124] When assessing and determining serious harm, the Supreme Court accepted Warby J’s approach of using a combination of the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probabilities. In particular, as the highlighted portion above sets out, part of the test of the defamatory character of the statement will place weight upon publications to circumstances previously only relevant to mitigation, such as that the matter complained of was only read by a small number of people.

[125] Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon “a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated” (Lachaux at [14]).

The Court found that Rader had failed to discharge the onus of demonstrating that they had suffered serious harm. The Court, accepting that Rader’s evidence at its highest, was satisfied that a discord in his relationship with his parents for some weeks does not amount to serious harm, despite the seriousness of the imputations.

There was otherwise no evidence to suggest that the email was disseminated to third parties in a way that would have caused harm to Rader’s reputation.

The Court referred to the case of Lachaux (above) wherein it was set out that:

… findings of serious harm should be based on the circumstances and extent of publication, whether the publication was likely to have come to the attention of others at the time or in the future and the gravity of the imputations. The meaning of the words, the situation of the plaintiff, the circumstances of publication and the inherent probabilities are also relevant.

In the circumstances, a judgment was made in Haines favour.

Raider subsequently appealed the decision to the New South Wales Court of Appeal. The Court of Appeal upheld the original decision by the trial judge and dismissed the appeal, with costs.

In Rader v Haines [2022] NSWCA 198, the Court of Appeal approved the decision Lachaux and set out the following propositions that it held were established in the English case:

In order to succeed, a plaintiff must satisfy the threshold of showing that the publication has caused or is likely to cause serious harm to his or her reputation.

“Serious” harm involves harm that is more than merely substantial, though it need not be grave.

The requirement for serious harm to reputation is concerned with actual or likely reputational damage – that is, the impact of the imputation, in all the circumstances, on the plaintiff’s reputation – arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. It is not satisfied by the gravity of the imputation alone. Nor is it satisfied by injury to feelings, however great. Relevant factors include the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether they believe the imputations.

A grave imputation may not result in serious harm, typically where the publication is to a small number of persons well acquainted with the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff’s reputation is transitory or ephemeral.

Further, the Court of Appeal maintained that the following conclusions of the trial judge accord with these relevant propositions at [29]:

Section 1 introduced a “new threshold of serious harm which did not previously exist”, and “Claimants therefore need to establish that serious harm has been caused or is likely to be caused as a fact”;

More than the mere inherent tendency of the words is required, even where the words amount to a grave allegation against the plaintiff, and special emphasis is to be placed on the circumstances and extent of publication”;

Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon ‘a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated; and

Findings of serious harm should be based on the circumstances and extent of publication, whether the publication was likely to have come to the attention of others at the time or in the future and the gravity of the imputations. The meaning of the words, the situation of the plaintiff, the circumstances of publication and the inherent probabilities are also relevant.

Serious Harm Assessment:

1. The Court confirmed the primary judge’s finding that the appellant, Mr. Rader, failed to meet the “serious harm” threshold required under Defamation Act.
2. The email was sent only to the appellant’s parents, with no evidence presented that it caused reputational harm to the appellant within a broader audience or via the ‘grapevine effect’.
3. The negative impact of the imputations on the appellant’s reputation with his parents dissipated within a few weeks. The ensuing discord between them was determined not to constitute “serious harm”.
4. In evaluating what constitutes “serious harm,” the duration of the harm was considered a relevant factor. The judge did not find ongoing or permanent harm but treated the temporary nature of the harm as pertinent to its assessment.

Selkirk v Hocking (No 2) [2023] FCA 1085

In the case of Selkirk v Hocking (No 2), a Sydney solicitor, Simone Selkirk (‘Selkirk’) commenced defamation proceedings against Mr Sean Hocking (‘Hocking’) and others relating to a MyLocalPages Article (‘the Article’).

This case related to the convictions of Selkirk before the Sydney Downing Centre Local Court on 18 December 2019 regarding sixteen (16) counts of dishonestly obtaining a financial advantage by deception and one count of obtaining a financial advantage.

Selkirk subsequently appealed the convictions, which was heard before the New South Wales Supreme Court on 11 June 2020. During the hearing, Selkirk admitted to the conduct and the acts of deception.

The Court of Appeal overturned the original decision as they the prosecutor could not establish ‘the provenance of the goods’ and were otherwise unable to prove the dishonesty element. As such, the appeal was allowed, the convictions were set aside, and the matter was remitted to the Local Court for re-determination.

In the circumstances, Selkirk commenced defamation proceedings again Hocking and others as the MyLocalPages failed to advise that the convictions had been appealed and were otherwise damaging Selkirk’s reputation.

During cross-examination at Trial, Selkirk did not deny the proposition that, despite the fact that her appeal was allowed, and the charges were withdrawn, on 17 occasions (including one attempt) she had committed those acts and that such conduct constituted what Selkirk admitted was deception.

The Federal Court held that Selkirk had not proven that the publication of the article had caused, or was likely to cause, serious harm to her reputation and dismissed the proceedings with costs, for the following (among other) reasons:

The immediate difficulty with the plea, and with the evidence led in support of it, is that neither address the critical question of whether the publication of the article caused any, let alone any serious, harm to Ms Selkirk.

Here, the evidence goes no further than vague assertions by Ms Selkirk that between February 2022 and September 2022, when she obtained employment in her field, the process of finding a job did not go very well, offers went cold and a number of referees were not contacted. Even if those things were attributable to the publication of the article – and I emphasise, there is no evidence of that whatsoever – I do not accept that those things constitute “serious harm” within the meaning of s 10A(1) of the Defamation Act, in any event.’

Further, Ms Selkirk has admitted through her counsel, before the Magistrate and on appeal, and in the witness box before me, that on 17 separate occasions over a very significant period of time (more than two years), she engaged in the acts of deception set out at paragraph [70] above. In those circumstances, I do not accept that even widespread publication of the article telling the tale of her convictions and of her intention to appeal them, could have caused her reputation to be made worse. It is true that the convictions were quashed on grounds that included that the Crown had not proven “dishonesty” within the meaning of the statute, but where Ms Selkirk conceded that what she did was nonetheless deceitful, in my view she proffered a distinction without a relevant difference.’

Put another way, and to adopt what Davis LJ said in Lachaux v Independent Print Ltd [2017] EWCA Civ 1334; [2018] QB 594 at 620 [79], there is no evidence that anyone “thought any the less of [her] by reason of the publication”.

Lastly, there is the fact that the number of persons to whom the article was published was, on any view of the mater, very limited. As Davis LJ also said in Lachaux v Independent Print Ltd [2017] EWCA Civ 1334; [2018] QB 594 at 620 [79], “[t]here may … be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could … be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited”. This case is one such instance.

In March 2024, His Honour Judge Derrington handed down a decision is Peros v Blackburn [2024] FCA 177, which was an application for hearing of separate question on whether claimant suffered serious harm.

Peros v Blackburn [2024] FCA 177

In the case Peros v Blackburn decided on 5 March 2024 by Derrington J, the Federal Court of Australia examined an application related to the serious harm requirement in defamation proceedings.

Vicki Blackburn, respondent in defamation proceedings, applied for a separate determination of whether three alleged defamatory publications caused, or were likely to cause, serious harm to John Peros, the claimant. This application was made under Rule 30.01 of the Federal Court Rules 2011 (Cth) or, alternatively, Section 10A(5) of the Defamation Act 2005 (Qld).

John Peros sued Vicki Blackburn for defamation based on posts and comments made in a Facebook Group administered by Blackburn titled “Justice for Shandee,” relating to the murder of Blackburn’s daughter, Shandee Blackburn, for which Peros had been acquitted.

The Court examined the nature of the publications and the implications of the “serious harm” requirement under defamation law.

The Court pondered whether the serious harm question could be efficiently and justly determined separately from the main trial. The discussion involved considerations of procedural efficiency, potential cost savings, and the impact of prior publications, including a coroner’s report and media coverage on Peros’s reputation.

The Court dismissed Blackburn’s application for a separate determination of “serious harm,” citing concerns over procedural complexity, evidentiary issues, and the broader implications of separating this question from the main defamation trial. The judgment emphasised the need for careful consideration of the unique circumstances of each case when applying Rule 30.01 of the Federal Court Rules.

This summary encapsulates the Court’s rationale and considerations in refusing the application for a separate determination of “serious harm,” highlighting the complexities of defamation law and the challenges of procedural management in such cases.

Serious Harm Threshold – Conclusion

As defamation case proliferate in our digitally interconnected world, understanding the serious harm threshold is essential for persons (including excluded corporations) seeking to protect their reputation or express their views responsibly.

As set out above, as a plaintiff commencing defamation, you bear the onus of demonstrating that you have suffered, will suffer, or would likely suffer serious harm from a publication to their reputation.

In essence, under Section 10A, the plaintiff must demonstrate that the publication inherently had the capacity to inflict serious harm on their reputation and that it indeed had such an effect on the plaintiff’s reputation, either historically as having “caused,” or prospectively as being “likely to cause,” significant harm to their reputation.

The critical aspects for which evidence might be presented to illustrate the actual effect include:

1. The audience of the publication and the number of recipients — considering how many individuals were exposed to the publication, though the sheer number might not be determinative.
2. The extent of the publication’s distribution, including any instances of republication or repetition — considering the “grapevine effect” and evidence of its impact, such as the reaction of others to the publication, especially on social media platforms.
3. The format of the publication — affecting how attentively the recipients perceive and interpret the publication’s content.
4. The geographical spread of the publication’s recipients — indicating where the audience was located.
5. The recipients’ interpretation of the publication — questioning whether the publication led recipients to have a diminished view of the plaintiff, though a lack of such evidence should not be deemed critical.
6. The subject of the publication — relating to the recipients’ prior knowledge or awareness of the plaintiff’s reputation.
7. The timing of the publication and its duration — highlighting the enduring nature of the publication, which could inflict harm (if it appears on the internet or social media, its enduring presence, beyond the plaintiff’s control, could potentially harm the plaintiff’s reputation at any future point when accessed).

It is therefore imperative that you speak with a lawyer prior to commencing defamation proceedings to ensure that you can satisfy the serious harm threshold.

Frequently Asked Questions (FAQs) about the Serious Harm Threshold in Defamation Law

See below for our comprehensive FAQ section on the serious harm threshold in defamation law.

Here, we address the most pressing questions about how this legal requirement impacts both plaintiffs and defendants in defamation cases.

What is the serious harm threshold in defamation law?

The serious harm threshold is a legal requirement introduced in the Defamation Act 2005 (Qld) amendment, necessitating plaintiffs to demonstrate that a defamatory publication has caused, or is likely to cause, serious harm to their reputation. This threshold aims to balance freedom of expression with the protection of reputation, ensuring that only cases involving significant reputational damage proceed in court.

How has the burden of proof shifted in defamation cases?

Prior to the amendment, defendants had to prove that a claim was trivial to dismiss it. However, the amendment shifts the burden of proof to plaintiffs, requiring them to establish that the defamation has caused serious harm to their reputation, thereby filtering out trivial claims from the legal system.

What constitutes “serious harm” to an individual’s reputation?

Serious harm to an individual’s reputation implies significant damage that affects the individual’s social, professional, or personal standing in a substantial way. It goes beyond mere insults or trivial comments, requiring evidence of tangible harm or the likelihood of such harm occurring as a result of the defamatory publication.

Can corporations claim defamation under the serious harm threshold?

Yes, corporations can claim defamation, but they must prove that the defamatory publication has caused, or is likely to cause, serious financial loss. This is a higher bar than for individuals, reflecting the principle that reputational harm to corporations primarily impacts their financial health.

Who determines if the serious harm threshold is met in a defamation case?

A judicial officer, rather than a jury, is responsible for determining whether the serious harm threshold is met. This decision can be made at any stage before or during the trial, allowing for early dismissal of cases that do not meet the threshold.

What happens if the serious harm threshold is not met?

If a case does not meet the serious harm threshold, it will be dismissed. This early dismissal mechanism prevents the courts from being burdened with trivial defamation claims and focuses legal resources on cases involving significant reputational harm.

How does recent case law interpret the serious harm requirement?

Recent case law, such as Lachaux v Independent Print Ltd and Rader v Haines, provides guidance on interpreting the serious harm requirement. These cases emphasise the need for concrete evidence of harm to reputation and clarify that emotional distress alone does not constitute serious harm.

What factors are considered in assessing serious harm?

Factors include the extent of the publication’s distribution, the audience’s reaction, the inherent probabilities of reputational damage, the publication’s format, and the geographical spread of its recipients. The actual impact on the plaintiff’s reputation, rather than the content alone, is crucial.

Can the serious harm element be determined before the trial?

Yes, the judicial officer may decide on the serious harm element before the trial commences, based on the pleadings and without the need for further evidence. This allows for the efficient management of defamation cases by dismissing those that do not meet the threshold early.

Does the serious harm threshold apply to online defamation?

Yes, the serious harm threshold applies to online defamation just as it does to traditional media. The digital nature of the publication may even amplify considerations such as the extent of distribution and the audience’s reaction due to the internet’s pervasive reach.

Is emotional distress considered in the serious harm assessment?

While emotional distress can be a consequence of defamation, it alone does not satisfy the serious harm requirement. The focus is on tangible harm to reputation, which must be demonstrated through the defamation’s impact on how others perceive the plaintiff.

How does the repeal of the defence of triviality affect defamation cases?

The repeal of the defence of triviality means that defendants can no longer dismiss a defamation claim by simply proving it was trivial. Instead, plaintiffs must prove the defamation caused serious harm, raising the bar for what constitutes actionable defamation.

What role does the audience’s perception play in determining serious harm?

The audience’s perception is crucial in determining serious harm. The impact of the defamation on the audience, including any change in their perception of the plaintiff, is a key factor in assessing whether the serious harm threshold has been met.

Can a single publication cause serious harm?

Yes, a single publication can cause serious harm if it significantly damages the plaintiff’s reputation among a relevant audience. The extent of the publication’s distribution and the nature of the content can influence whether serious harm is deemed to have occurred.

What should potential plaintiffs consider before filing a defamation lawsuit?

Potential plaintiffs should consider whether they can demonstrate that the defamation has caused or is likely to cause serious harm to their reputation. Consulting with a legal professional is crucial to assess the viability of the claim under the serious harm threshold and to understand the evidence required to support their case.